Eugene Ray Cobell appeals from the district court's judgment summarily dismissing his successive petition for post-conviction relief. Specifically, Cobell asserts the district court erred by dismissing the petition on the ground that Cobell's claim of ineffective assistance of prior post-conviction counsel was not a proper basis upon which to file a successive petition. For the reasons set forth below, we vacate the judgment of dismissal and remand the case for further proceedings.

I. FACTS AND PROCEDURE

A jury found Cobell guilty of rape and forcible sexual penetration by use of a foreign object. In July 2008, the district court entered a judgment of conviction and imposed concurrent, unified sentences of life, with ten years determinate, for each charge. Cobell directly appealed, making several claims: (1) violation of his Fifth Amendment right to remain silent when the prosecutor cross-examined him about his post-Miranda*fn1 silence; (2) prosecutorial misconduct during closing argument where the State commented on Cobell's silence after receiving his Miranda rights and misstated evidence; (3) cumulative error; and (4) excessive sentences. This Court affirmed the judgment of conviction and sentences, finding the district court erred by allowing the prosecutor to question Cobell regarding his post-Miranda silence, but such error was harmless; the prosecutor did not commit misconduct; the misstatement of evidence did not rise to the level of fundamental error; the slight trial error did not warrant the grant of a new trial under the cumulative error doctrine; and the sentences were not excessive. State v. Cobell, 148 Idaho 349, 223 P.3d 291 (Ct. App. 2009). Thereafter, Cobell filed a petition for post-conviction relief. The district court dismissed the petition in June of 2010, a decision that Cobell did not appeal.*fn2

On July 28, 2011, Cobell filed a successive pro se petition for post-conviction relief. In his successive petition, Cobell asserted the inadvertent omission of key claims and issues in his original post-conviction petition was to blame for its dismissal and he claimed ineffective assistance of his prior post-conviction counsel. Cobell claimed actual innocence due to a medical issue, which rendered him incapable of committing the crimes. Cobell further claimed ineffective assistance of trial counsel for failing to investigate the medical issue, prosecutorial misconduct at both the trial and sentencing, and other claims. Cobell concluded the successive petition was an attempt to raise issues that he was not given a fair opportunity to present in his original post-conviction petition.

The State moved to dismiss the petition, citing as a ground for dismissal Cobell's failure to allege any reason why Cobell's claims were not raised in the original petition. The district court issued a notice of intent to dismiss wherein it concluded a successive petition based on ineffective assistance of prior post-conviction counsel was without merit. Although Cobell responded to the notice of intent to dismiss, the district court issued an order summarily dismissing the petition for the reason stated within the notice and subsequently entered a judgment. Cobell timely appeals.

II. ANAYLSIS

Cobell asserts the district court dismissed his successive petition on the sole basis that a claim for ineffective assistance of prior post-conviction counsel was not a proper basis upon which to file a successive petition, a decision that was error. Cobell argues the district court's conclusion is contrary to precedent from Idaho appellate courts, which states that ineffective assistance of post-conviction counsel can provide a sufficient reason to support a successive post-conviction petition that raises new issues or renews claims brought forth in an original petition. The State responds that, although the district court did not expressly acknowledge that ineffective assistance of post-conviction counsel may be a sufficient reason for reasserting previously dismissed claims in a successive petition, Cobell's conclusory claim that post-conviction counsel was ineffective, was insufficient to withstand summary dismissal as stated in the district court's order. The State argues there was no error by the district court because Cobell failed to allege a prima facie showing of ineffective assistance of post-conviction counsel--i.e., Cobell did not allege what actions by post-conviction counsel were deficient or how they prejudiced him.

In its notice of intent to dismiss, the district court recited the standard for filing a successive petition, including that the court must be able to find a sufficient reason that a ground was not raised in an initial post-conviction petition. In citing the reasons for the intended dismissal, the district court noted:

Here, the petitioner's sole argument that his claims were not adequately raised in his initial post conviction petition is that his post-conviction counsel was ineffective. However, because there is no right to post-conviction counsel, a petition based on ineffectiveness of post-conviction counsel is without merit. Follinus v. State, 127 Idaho 897, 908 P.2d 590 (Ct. App. 1995). Because the petitioner has not ...

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